Hilgenberg v. Neth

MEMORANDA OPINIONS AND ORDERS NEESE, District Judge. In each of these actions, the defendant Mr. Arrowood moved for an order requiring the respective plaintiffs to produce for his inspection and copying certain documents claimed to be within the custody or control of such respective plaintiffs. Rule 34, Federal Rules of Civil Procedure, “* * * provides for production upon request, and not by motion. * * *” Ross v. Longchamps, Inc., D.C.Mo. (1971), 336 F.Supp. 434, 437[2]; see Form 24, Federal Rules of Civil Procedure, Appendix of Forms. Accordingly, the Court declines to consider this aspect of the respective motions until such time as the movant has first requested the respective plaintiffs to produce the documents and is refused. Grissom v. N. L. R. B., D.C.La. (1973), 364 F.Supp. 1151, 1154[4], affirmed C.A. 5th (1974), 497 F.2d 43. To the extent the aforementioned motions seek orders directing certain non-party corporations to produce the desired documents, each such motion hereby is DENIED. Rule 34, supra, cannot be used in such manner. Fleming v. Gardner, D.C. Tenn. (1978), 84 F.R.D. 217[1], citing Hickman v. Taylor (1947), 329 U.S. 495, 504, 67 S.Ct. 385, 390, 91 L.Ed. 451, 459. Such discovery must be had, if at all, by a subpoena duces tecum issued pursuant to the provisions of Rule 45(b), Federal Rules of Civil Procedure. See In Re Penn Central Commercial Paper Litigation, D.C.N.Y. (1973), 61 F.R.D. 453, 466.